BIM – A legal perspective with Arthur Cox

In light of the current trend towards the adoption of BIM in Ireland, it is timely to consider the legal and contractual implications arising from its implementation.

Support for Building Information Modelling (BIM) in Ireland is gathering pace. Dublin recently hosted the ‘CitA BIM Gathering 2015 – An Integrated Future[1]’ which has been described by delegates as “one of the best international BIM events of 2015”.

Incorporating BIM into the Contract

BIM is regarded as a powerful risk and cost management tool, encouraging better collaboration leading to efficient working and improved project delivery. Contractors in Ireland are already utilising BIM to help them gain competitive advantage in the marketplace.

Significant work has been undertaken in the United Kingdom (“UK”) in relation to BIM, including the publication of the CIC BIM Protocol[2] (“the Protocol”) and the PAS 1192-2 document which specifies the requirements for achieving BIM Level 2. From 1st July 2016, the UK aims to promote widespread adoption of BIM Level 2 by requiring it to be included in all UK government infrastructure projects[3]. These developments have not gone unnoticed in Ireland – the Royal Institute of Architects Ireland (“RIAI”) has adopted PAS 1192-2, and BIM is regularly being used on public private partnership projects.

The Protocol and PAS 1192-2

The Protocol was published in February 2013 in response to the UK Government’s Construction Strategy requiring a minimum of Level 2 BIM on centrally-procured public projects by 2016.

The Protocol is a relatively short document (seven pages in length) and serves as a supplementary legal agreement which can be incorporated into construction contracts and professional appointments and is intended to be a contractual document.

The Protocol sets out various requirements, such as the parties’ roles and obligations in relation to the BIM model, and the need for the client to appoint an information manager to co-ordinate the model. The Protocol guidance promotes the adoption of PAS 1192-2 but there is no reference to this document within the Protocol itself.

Generally, the Protocol is viewed as a good starting point for projects utilising BIM. However, there are differing schools of thought in relation to the value of the same. Take, for example, the Public Works Contracts (PWCs) in Ireland which are a widely used form of construction contract. The PWCs do not contain detailed BIM terms. Some are of the view that the PWCs would not require major amendments to make them “BIM ready”. However, others are of the opinion that due to inconsistencies and difficulties with the Protocol itself, significant work including the incorporation of specific clauses dealing with BIM issues, will need to be undertaken to make contracts such as the PWCs ready to deal with this modern, technology-enabled process.

New ways of working inevitably create new issues. BIM is a complex process which is not yet fully understood. In addition issues may arise due to a lack of established case-law, and due to a lack of harmonised procedures and standards.

Critics also point to issues with the Protocol itself as creating further difficulties. Many have criticised the Protocol’s failure to deal with the ownership of and right to use BIM models, its contradictions of terms (for example the definition of “material”), its failure to define BIM Level 2, and the absence of a warranty from the parties regarding the integrity of electronic data they provide[4]. In particular, a major criticism of the Protocol is that the copyright licence granted to the employer is revocable on non-payment of fees. The impact of revocation of copyright in a BIM project could be substantial given the backdrop of shared data.

Critics therefore believe that specific BIM clauses/terms should be incorporated into the contract itself to help create certainty, for example, in relation to the allocation of risk, parties’ responsibilities etc., which should hopefully help to avoid potential disputes, and create more efficient working practices. Some of the key issues which parties may wish to consider dealing with in their contracts are set out below[5].

Copyright

BIM involves the contribution by different consultants and specialist contractors of separate designs to create a composite model. As such, issues in relation to copyright (of the data submitted by each party and of the overall model itself) inevitably arise.

In an attempt to get around such issues, it would be prudent, at the outset of the project, for parties to consider and then make clear in the contract who owns what design (which was contributed to the model), who owns the model(s) itself, and its outputs. Usually, the design will remain with whoever created it, but ownership of the model(s) can often be a commercial call. The contract should also seek to address to whom, when and for what purposes licences to use copyright shall be granted. Parties may also wish to consider providing indemnities to each other from and against claims arising from a breach of the other’s intellectual property rights.

Kate Monaghan, Associate
Construction Group

Risk Allocation

It has been suggested that BIM is a useful risk management tool allowing parties to become aware of potential construction problems at an earlier stage of the project. On the other hand, the very essence of BIM (i.e. the collaboration between various parties to contribute to the final BIM model with multiple contributors using the programme), calls for the distribution of risk to be clearly defined between the various contracting entities.

If we take, for example, a situation where a building turns out to be defective due to a design fault, it may not be clear where responsibility lies if various parties have contributed design to the BIM model. Design responsibility may therefore need to be more clearly defined in contracts using BIM. Specific limitations and exclusions in the contract should also enable parties to know who is responsible for what, hopefully circumventing the risk of becoming embroiled in a lengthy dispute at a later date.

Another way to try to avoid potential disputes, is to ensure that the various documents forming the contract contain the same standard of care. If there is inconsistency, for example, between the use of‘reasonable endeavours’ versus the higher standard of care of ‘best endeavours’, difficulties and disputes are likely to arise.

Building Information Manager

The Building Information Manager (the “BI Manager”) is set to play a key role in coordinating the use of BIM on a project such as keeping data secure, arranging access to data etc.

The BI Manager role may be carried out by a professional consultant who is already engaged on the construction project, or by a separate consultant engaged specifically for the role. If the role of BI Manager is undertaken by an existing consultant, it has been recommended that a separate BI Manager appointment is drawn up to ensure that the respective roles and responsibilities are clearly defined.

In any event, when appointing a BI Manager, it is important to ensure that the following issues are clearly addressed in the appointment:-

The BI Manager’s scope of services: to avoid any misunderstanding the role needs to be clearly defined.

The scope of the BIM information manager’s liability.

Conclusion

Support is growing for BIM in Ireland and the indications from across the water is that the risks of using BIM are far outweighed by its benefits. In terms of public contracts, we will have to wait and see if our government lends as much support to the use of BIM as has been the case with the UK government[6]. In the interim, BIM is already active in the country and looks set to be a prominent feature in an increasing number of construction projects in both the public and private sectors. Whilst those using BIM can reap its many benefits, it is important to keep a close eye to clarity and consistency in the contract documents to avoid potential pitfalls. This will necessitate a significant review of all of our standard form contracts in Ireland.

[6] The Office of Government Procurement’s December 2014 report in relation to proposed amendments to the PWCs referred to BIM as a “powerful risk management tool” and indicated that it would likely be made mandatory for “projects of a certain scale and complexity”. The report indicates, however, that this requirement is a medium term goal, and not something which will be rolled out straight away.